OA/09190/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09190/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 19 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AAMERUDDIN MOHAMMED
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Whitwell a Home Office Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
Background
1. For the purpose of continuity with the determination in the First-tier Tribunal I will hereinafter refer to the Secretary of State as the Respondent and Mr Mohammed as the Appellant.
2. The Respondent cancelled the Appellant's leave to remain as a student on 12 September 2014. His appeal against this was allowed by First-tier Tribunal Judge Fitzgibbon QC ("the Judge") following a hearing on 14 June 2016.
3. In summary the Judge found that the Respondent had failed to show that the Appellant had acted dishonestly in relation to the English Language test as no evidence was produced to support such an assertion.
The grant of permission
4. Upper Tribunal Judge McWilliam granted permission to appeal (5 December 2016) on the ground that it is arguable that the Respondent had served evidence on the Tribunal prior to the hearing but it had not been linked to the file.
Appellant's position
5. The Appellant did not attend this hearing as he had been removed from the United Kingdom. No one appeared on his behalf. I was satisfied that he had been served with notice of the hearing by airmail on 23 December 2016 to the address in India where he identified he resided. He had sufficient time to instruct representatives for this hearing or make submissions in writing. I was therefore satisfied that it was appropriate and fair to proceed in his absence.
Discussion
6. There is on file a bundle of documents dated 20 January 2016 for this matter sent by the Respondent to the Tribunal. It was therefore served well before the hearing. I have no idea why it was not attached to the relevant file. In those circumstances, through no fault of the Judge, a material error of law occurred in that evidence that had been filed by the Respondent was not able to be considered by him.
7. I am therefore satisfied that the Judge made a material error of law.
8. Mr Whitwell conceded that the matter should be remitted to the First-tier Tribunal as there had never been a proper hearing and that was the appropriate venue for the evidence to be considered in such circumstances. I agree.
Decision:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the matter to the First-tier Tribunal on the 1st available date for it to be reheard by a Judge other than Judge Fitzgibbon.


Deputy Upper Tribunal Judge Saffer
19 January 2017